Source: The Washington Post
Copyright: 1999 The Washington Post Company
Page: A01, Front Page
Pubdate: Mon, 8 Feb 1999
Contact: http://washingtonpost.com/wp-srv/edit/letters/letterform.htm
Website: http://www.washingtonpost.com/
Author: Joan Biskupic, Washington Post Staff
Note: The Fully Informed Jury Association website is at:
http://www.fija.org/
IN JURY ROOMS, A FORM OF CIVIL PROTEST GROWS
Activists Registering Disdain For Laws With a 'Not Guilty'
In courthouses across the country, an unprecedented level of juror activism
is taking hold, ignited by a movement of people who are turning their back
on the evidence they hear at trial and instead using the jury box as a bold
form of civil protest.
Whether they are African Americans who believe the system is stacked
against them, libertarians who abhor the overbearing hand of government or
someone else altogether, these jurors are choosing to ignore a judge's
instructions to punish those who break the law because they don't like what
it says or how it is being applied to a particular defendant.
The phenomenon takes all forms. In upstate New York, an African American
man refused to join 11 other jurors in convicting black defendants of
cocaine charges, saying he was sympathetic to their struggles as blacks to
make ends meet. In rural Colorado, a woman refused to convict in a
methamphetamine case and caused such disruption that she forced a mistrial
and was convicted herself of obstructing justice. And just last year in
Montgomery County, jurors in two separate trials of developer and
politician Ruthann Aron objected to her even being prosecuted on
murder-for-hire charges in the first place.
In all of these cases, the jury box turned into a venue for registering
dissent, more powerful than one vote at the polls and more effective at
producing tangible, satisfying results.
Although they still represent a relatively small proportion of the tens of
thousands of jurors who file into courtrooms every day, a striking body of
evidence suggests that their numbers are increasing. Case studies and
interviews with more than 100 jurors, judges, lawyers and academics reveal
a significant pattern of juror defiance. Some go so far as to say jury
nullification -- the term for jurors who outright reject the law --
represents a threat to the foundation of the American court system if it is
not confronted and dealt with effectively.
"There is a real potential danger if this problem goes unchecked," said
former District judge and Deputy Attorney General Eric H. Holder Jr. "I've
seen what happens when ordinary citizens sit on a jury with someone who
nullifies. You hear it in their comments. There is a real loss of faith.
And for those who are regularly a part of the court system, there is a real
cynicism that grows out of nullification."
The most concrete sign of the trend is the sharp jump in the percentage of
trials that end in hung juries. For decades, a 5 percent hung jury rate was
considered the norm, derived from a landmark study of the American jury by
Harry Kalven Jr. and Hans Zeisel published 30 years ago. In recent years,
however, that figure has doubled and quadrupled, depending on location.
Some local courts in California, for example, have reported more than 20
percent of trials ending in hung juries. Federal criminal cases in
Washington, D.C., averaged 15 percent hung juries in 1996 (the most recent
year for which data were available), three times the rate in 1991.
A hung jury is simply one in which the 12 men and women around the table
disagree over whether to convict or acquit. But judges, lawyers and others
who study the phenomenon suspect that more and more, differences are
erupting not over the evidence in these cases but over whether the law
being broken is fair.
Their concerns are supported by a recent nationwide poll by Decision Quest
and the National Law Journal, which found that three out of four Americans
said they would act on their own beliefs of right and wrong regardless of
instructions from a judge to follow the letter of the law.
Because of the secrecy surrounding jury deliberations, it is impossible to
know precisely how often jurors act on those views. Nonetheless, the
evidence is becoming overwhelming that the problem is real.
And its proponents are becoming well-organized, promoting their call for
jury activism in every state and in every form. They've printed bumper
stickers and brochures, rented billboards and subway placards, and created
Web sites and informal clubs urging people to stand up to the system.
"What's different now," says Vanderbilt University law professor Nancy
King, who has tracked the phenomenon, "is that there's an organized,
national movement to change the power of the jury."
Hidden Agendas
It is difficult to tell when a juror is taking the law into his own hands.
The only people in the room deliberating are the 12 who have been picked to
serve, so unless one of them speaks up, no one knows why a jury reaches the
conclusion it does. Nor can anyone know what motivates a particular juror.
If jurors vote not to convict because they don't believe the nation's drug
laws are fair, they may disguise their true feelings by simply saying the
evidence wasn't there or the prosecution didn't make its case. Otherwise,
they risk being ejected from the jury box.
But lawyers across the country are convinced that jurors are rejecting the
law -- in drug possession cases, in trials that lead to "three strikes,
you're out" or other stiff mandatory sentences, and in situations that
invoke evolving social values, such as the "assisted suicide" charges
lodged against Jack Kevorkian.
Prosecutors see it as vigilante justice, but defense lawyers have a
complicated response. Like New York defense lawyer Thomas J. O'Hern, many
do not endorse nullification as a payback for race discrimination or other
social grievances, but they also recognize that, if a juror does hold out
on conviction, that's good for their client. "From my point of view,"
O'Hern said, "there are three potential verdicts, 'guilty,' 'not guilty'
and 'can't decide.' 'Can't decide' is a win for me."
Some of the most sensational cases, or at least most publicized, arise when
the subject of race does.
In the recent case against former agriculture secretary Mike Espy, accused
of accepting illegal gratuities, independent counsel Donald C. Smaltz asked
the judge to specifically instruct jurors not to consider the fact that
Espy is African American. Smaltz said he was making the request because
Espy's lawyer suggested to jurors that Espy was prosecuted because he is
black. Racial arguments, Smaltz said, are "an attempt to encourage the jury
to acquit the defendant regardless" of his guilt. Smaltz was turned down,
but the daring strategy comes as fresh evidence that prosecutors
increasingly believe they need to head off social vindication in the jury
box. (Espy was eventually acquitted in December of all charges by a jury of
11 blacks and one white, and all of the jurors questioned afterward said it
was not race that led to their verdict but their belief that Smaltz's
corruption charges were overblown.)
Nine years ago, also in Washington, the celebrated trial of Marion Barry
brought issues of race and jury nullification to the fore when the mayor's
defense lawyer subtly appealed to jurors to reject the drug charges because
the government had targeted and entrapped the controversial black mayor.
The jury convicted Barry of one count of possessing cocaine, acquitted him
on another count and was unable to reach a verdict on 12 other counts. In
the aftermath, a majority of blacks surveyed in the city said they were
"satisfied" with the verdict and a majority of whites said they were not.
That same racial polarity arose in the case of O.J. Simpson. To much of
white America, polls showed, Simpson's acquittal looked more like the
product of nullification than insufficient evidence. Indeed, it was after
the jurors emerged with their "not guilty" verdict three years ago that the
phrase "jury nullification" burst into the mainstream media. Many
commentators questioned whether the predominantly black jury sided with
Simpson because of his race when they acquitted him of murdering his
ex-wife and her friend. The jurors insisted that there was not enough
evidence to convict, and they had plenty of lingering questions about the
role of the Los Angeles police.
Whatever the motivations, few legal scholars would consider the Simpson
case true nullification, if only because all 12 jurors on the mixed-race
jury moved to acquit. More common is the lone holdout with an ax to grind
who goes against the others, and who can be exposed by his frustrated
colleagues.
In the Albany, N.Y., cocaine case, juror Leslie Davis appeared rebellious
from the beginning. When he was sworn in to hear the case of five siblings
accused of selling drugs out of their mother's house, Davis raised a fist,
rather than simply holding up an open hand. He slapped his leg and
whispered, "yeah, yes," when defense lawyers tried to refute the mound of
evidence: videotapes of late-night visitors to the mother's home, testimony
from informants, records of big-money transfers among the unemployed
brothers and sisters. In deliberations, Davis, the only African American in
the jury box, proclaimed that the government's case wasn't worth "a bag of
beans."
He told the white jurors they didn't understand what the neighborhoods were
like where the black defendants lived or the struggles they faced even to
survive. Eventually, the other jurors sent notes to the judge telling him
that Davis wasn't deliberating fairly and that he had turned the case into
a racial referendum: "He thinks that everything we say is against his
race," one said. When U.S. District Judge Thomas McAvoy began to dismiss
Davis, saying he had become convinced that the juror wouldn't convict no
matter what, Davis was enraged. "Wait a minute. You're going to dismiss me?
And let the other jurors decide?" he complained.
Race also appeared to play a role in a recent case in the District that
ended in a hung jury. The defendant was an African American man charged
with illegal possession of a firearm. And when he took the stand, he told
the jurors that the gun police found in his car was his wife's and that she
carried it for protection in their Southeast neighborhood.
According to a white juror who agreed to discuss the case if his name was
not used, the majority-black jury was ready to find the defendant guilty.
But one juror, a black woman in her forties, told the others it was
perfectly understandable why someone would want to keep a gun for
protection, legal or not. And because the defendant had a prior conviction,
he would probably get a long sentence if convicted. It would serve no one,
particularly not a black man who she believed was trying to keep out of
trouble against the odds in his poor neighborhood, to send him to prison,
she argued.
For a while she was alone in her view, but she kept at it. Then, in a
dramatic reversal, the foreman, also black, adopted her position, and that
irretrievably deadlocked the group.
"The foreman was taking an illegal, but frankly, practical view," the white
juror said. "It put me on edge. But it would have taken a fair amount of
courage to challenge him."
In Oakland, Calif., jurors complained about a member of their panel who
they thought was overly sympathetic to a defendant accused of robbing a
Wendy's restaurant.
James R. Metters Jr. ordered some food and then told the cashier to "give
him all the twenties." His hand was wrapped in cloth and the cashier later
testified that she thought Metters was holding a gun, so she gave him the
money, and he fled. The cashier found the restaurant manager, who
immediately told a police sergeant who happened to be stopped at the
Wendy's drive-through window. The police sergeant caught Metters and found
his coat and $383 in cash nearby.
During his trial, Metters's lawyer brought out that his client was being
pursued by drug dealers whom he owed money. He was afraid for his life.
When the jurors began deliberating, a woman identified as "Juror No. 4"
felt it was wrong to convict him, according to court records. The drug
dealers threatened to kill him and his family, she complained. "Shouldn't
that matter?" asked this juror. Others in the room felt that the man should
be convicted of the crime, whatever his motivations, and took their case to
the judge. In a note, they complained that Juror No. 4 was "unfairly
sympathetic to" Metters, that she had worked in a drug and alcohol
rehabilitation facility and that it was affecting her ability to
objectively view the facts and law in the case.
When the judge questioned the juror, she insisted that she had been
"deliberating in good faith for a day and a half" but felt that there had
been a breakdown in communication. "I'm not willing to deal with what went
on in there yesterday," she said. "They are trying to convince me that I'm
stupid."
The judge agreed with the other jurors that she was not being open-minded
and dismissed her. An alternate juror was added, and the jury then found
Metters guilty.
Post-Trial Surprises
Sometimes crosscurrents among jurors only become public after the
deliberations. That happened in both trials last year for Ruthann Aron, the
former Maryland politician accused of trying to hire a hit man to kill her
husband and a lawyer.
The first jury deadlocked last March when a lone holdout, Shawn D. Walker
of Silver Spring, said she thought Aron should not be prosecuted because
she hired the killer at a time when she was emotionally overwrought. Better
to let her off and urge her to get counseling than to use the court system
to throw her in prison, Walker felt. Other jurors later complained that
Walker came to the jury box biased in favor of Aron's assertion that she
was too mentally ill to realize that she was committing a crime. Walker had
taught emotionally disabled children and had professional experience with
mental disorders, neither of which Walker revealed during jury selection.
After the second Aron trial ended abruptly last July when Aron agreed to
plead no contest, a juror revealed she also was ready to vote against
conviction. "She clearly did it," said the 40-year-old female juror from
the second trial who asked not to be named. "But she had bottomed out. This
was a mental health issue. And, in the end, no one ended up dead."
This juror said she had never heard of "jury nullification" before that
trial. But afterward, she began telling friends and colleagues about her
experience and they pointed her to Internet sites urging people to take up
the cause, to get on juries to "vote your conscience."
Her reflections are revealing about the process of jury activism: "You
don't go in there and say, 'I don't believe in drug laws or the death
penalty so I'm going to vote to acquit.' It just happens. Suddenly, people
who think of themselves as law-abiding don't like the way the law is being
used."
Encouraging Dissent
When it was first formed in a desolate Montana hamlet 10 years ago, the
Fully Informed Jury Association could conduct its business around a kitchen
table. Today, it claims 6,000 devotees nationwide who help spread the word
- -- through the Internet, mass mailings and courthouse leafletting -- that
jurors should act on their own morality. And that clarion call, as well as
the effect of members' work in today's courtrooms, is beginning to gain
attention.
"Jurors have an inherent right to veto unjust laws," said Larry Dodge, a
Montana sociology professor turned libertarian activist who heads the
group. Its activists have been arrested for obstructing justice in several
cities where they have passed out leaflets to jurors arriving at courthouses.
"I don't think we've ever inspired people to just fold their arms and say,
'We're going to stick it to the system.' Rather, we give them ideas for
doubt about the law," Dodge said from his Helmville, Mont., office-trailer
filled with stacks of pamphlets and cassette tapes carrying his message.
Dodge urges callers to his hot line not to reveal any ideological bent if
they are called to serve. "Lying is sometimes the right thing to do," he
says, "because judges shouldn't be asking prying questions in the first
place."
Few of the nation's trial judges have been willing to publicly voice
concerns for fear of giving the movement legitimacy or appearing to tread
on juror independence. But for Colorado circuit Judge Frederic B. Rodgers,
jury nullification is a consuming interest.
"It is a recipe for anarchy . . . [when jurors] are allowed to substitute
personal whims for the stable and established law," said Rodgers, who has
warned other judges in articles that organized activists are "coming to a
courthouse near you."
If a juror dislikes a law, Rodgers and a handful of other outspoken judges
insist, he should press for legislative change, not behave in a random
fashion that lets one criminal off scot-free but sends another -- with a
different jury -- to jail.
"Jury nullification is indefensible," adds D.C. Superior Court Judge Henry
F. Greene, who has become concerned about the number of hung juries in the
District, "because, by definition, it amounts to juror perjury -- that is
jurors lying under oath by deciding a case contrary to the law and the
evidence after they have sworn to decide the case according to the law and
the evidence."
Houston lawyer Clay S. Conrad, author of a new book defending jury
nullification, asserts that it is not "anarchist." For the average citizen,
he says, nullification is an effective way of countering prosecutorial
abuse and limiting the power and intrusiveness of the legislature.
Unlike libertarians Dodge and Conrad, George Washington University law
professor Paul Butler comes at the subject from a different perspective,
and has developed a national reputation by telling black jurors they should
vote against conviction to stop another African American from ending up in
prison.
"Jury nullification, for me, is a tool," Butler said. "It's a tool for some
sort of fairness in the criminal justice system, where the situation is
getting worse for blacks." Butler doesn't believe murderers or other
dangerous criminals should be spared from conviction, but in "victimless"
crimes like drug possession, he believes black jurors should protect their
own.
A former prosecutor who keeps at his fingertips statistics about the
disproportionate number of blacks in prison, Butler has espoused his views
on national television, in speeches and in numerous publications. "If
African Americans simply followed the law because whites told them to,
they'd still be slaves," he maintains. "The law doesn't come from God. It
comes from people like Jesse Helms and Newt Gingrich."
A Challenge to the System?
The right to trial by a fair and impartial jury is fundamental in America
and rests on the belief that a jury may be the only shield between an
individual and an overzealous prosecutor or a biased judge.
But if the process is breaking down, if people are using it as a way to
express a personal agenda, should the system be changed? To even address
the question -- which many court officials are reluctant to do -- is to
suggest that there is something wrong with a central component of American
democracy.
Some states have debated whether to permit non-unanimous verdicts in
criminal cases as a way to shut down rebel jurors who create hung juries.
The rationale is that if one or two jurors fail to consider the evidence,
an agreement among the 10 or 11 others could seal a verdict.
Many judges are also spending more time questioning potential jurors before
they get on a trial in hopes of weeding out those who want to protest the
law. And prosecutors have brought charges against jury "nullification"
activists who pass out leaflets at courthouses encouraging jurors "to vote
your conscience."
And yet, while a growing number of prosecutors and legal scholars believe
the problem needs addressing, there is no consensus on what actions should
be taken when jurors ignore the law.
"You're real hesitant as a judge to go beyond what ought to be a pretty
inviolable shield" protecting jury deliberations, said Holder, a former
Superior Court judge in the District. "But you do have those who go into
the jury room with an agenda: 'I don't want to convict another black guy.' "
Holder thinks officials should be more vigilant in monitoring the movement,
seeing which cases tend to produce nullification, determining whether the
trend is becoming "more dangerous."
Perhaps not surprisingly, prosecutors and defense lawyers are of two minds
on the dangers to the system and what should be done.
"We don't want vigilante justice," said Donald Kinsella, the federal
prosecutor in the Thomas family drug case who at every phase of the trial
had pressed the judge to remove Leslie Davis. But defense lawyers say that
when a jury is hung, it is because the prosecution has failed to make its
case, whatever the reason. Defense lawyers fear that any new effort to
respond to jury activism will intrude on the fairness of the jury system
and ultimately lead to more convictions.
In the end, it could be argued, the system sometimes takes care of itself.
In Albany, the Thomas siblings were found guilty of drug charges by the
remaining 11 jurors after Davis was removed, but the defendants then
appealed the conviction.
The U.S. Court of Appeals for the 2nd Circuit, reviewing the whole episode,
said jurors have no right to reject a law simply because they don't like it.
"Nullification is, by definition, a violation of a juror's oath to apply
the law as instructed by the court," the court said in its 1997 ruling, the
strongest, most recent court decision on the topic. The opinion by Judge
Jose Cabranes said jurors who reject the law should not be allowed to serve.
But the appeals court also ordered a new trial after declaring that only
"unambiguous evidence" of a juror's disregard of the law can justify his
dismissal.
In a retrial, the Thomas siblings were found guilty of selling and
conspiring to sell drugs -- by an all-white jury.
Staff researcher Madonna Lebling contributed to this report.
ABOUT THE PROJECT
Over the past several years, reports of jurors ignoring the law and
refusing to convict in the face of overwhelming evidence have grown in this
area and across the country. Because there has been no systematic study of
the practice, The Post set out to measure the degree to which jury activism
permeates the justice system. The research was conducted over four months
and included personal interviews with more than 100 jurors, judges, defense
lawyers and prosecutors, as well as an analysis of academic studies,
polling data and scores of cases.
Jury Defiance
People increasingly are using the jury box as a form of civil protest. Some
studies suggest the actions reflect an overall decline in respect for legal
institutions.
Measures of displeasure
The National Opinion Research Center at the University of Chicago reports
that public confidence in the courts and the legal system has eroded in
recent years.
Percentage of people surveyed reporting very little or no confidence in the
legal system:
1991 28%
1998 33%
The Gallup Poll has reported a decline in the ratings people give lawyers
for honesty and ethical standards.
Percentage of people who rate lawyers as having "high" or "very high"
ethical standards:
1983 24%
1998 14%
A Decision Quest/National Law Journal poll in October 1998 found that three
out of four Americans eligible to serve on a jury say they would act on
their own beliefs of right and wrong regardless of legal instructions from
a judge.
Percentage of Americans who say they would act on their own beliefs during
a trial: 75%
Nullification or not?
MIKE ESPY:
Independent counsel Donald C. Smaltz asked the judge hearing the
illegal-gratuities case against former agriculture secretary Espy to
instruct jurors not to consider that Espy is African American.
JACK KEVORKIAN:
Jurors are increasingly rejecting the law, experts say, in situations that
invoke evolving social values, such as the "assisted suicide" charges
lodged against Kevorkian.
RUTHANN ARON:
In both trials for Aron, the Maryland politician accused of trying to hire
a hit man to kill her husband and a lawyer, evidence of a juror's bias
became public after the end of deliberations.
O.J. SIMPSON:
Many commentators questioned whether the predominantly black jury sided
with Simpson because of his race when they acquitted him of murdering his
ex-wife and her friend.
Legal Cornerstone
Anyone accused of a crime in this country is entitled to a jury trial. It
is a guarantee at the core of the American legal tradition and reflects the
belief that a group of one's peers may be the only protection from a
capricious or unfair prosecutor.
People called to serve are asked a series of questions designed to weed out
anyone who would not be fair or objective. To prevent them from refusing to
carry out the law, individuals are asked whether they can accept a statute
as it is written. That is, can they decide whether a person is guilty of
illegal drug use, for example, and not let their personal feelings about
what the law should say interfere?
The American custom is that jurors decide the facts of the case (whether
the person did what he is accused of) and leave it to judges to interpret
the law. There is no room, in other words, for jurors to say whether they
think the law is a good one, though there have been a few celebrated
exceptions -- notably the 18th-century acquittal of John Peter Zenger of
seditious libel and the 19th-century acquittals for prosecution under the
fugitive slave law.
Before a jury begins deliberating, a judge will typically tell the 12 men
and women that they must apply the law as written. A juror who spurns that
mandate and ignores the evidence can be removed from deliberations.
But knowing when they do that is difficult because the jurors do not have
to explain their votes and, save for a few exceptional situations, a judge
cannot second-guess the verdict.
In the most recent, comprehensive ruling on the subject, the U.S. Court of
Appeals for the 2nd Circuit last year declared that judges may dismiss
jurors who refuse to follow the law. But the New York-based appeals court
said a judge should be certain that the defiant juror is not simply
expressing a reasonable doubt about the defendant's guilt. That May 1997
ruling has since become a touchstone for courts across the country.
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